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NEWPORT — George St. Francis wants to get out from under the control of his guardian and take over his own life.

Meanwhile, he faces a court process that could severely limit the freedoms he currently enjoys. He could be returned to the control of a state guardian and be subjected to 24-hour arm’s length supervision, something like a prison without walls.

Which way his life will go is up to Judge Walter Morris, who had been conducting a series of Family Court hearings into his case.

A motion seeking Mr. St. Francis’ emancipation as a competent adult has been filed by his attorney, Susan Davis.

If he were to grant the motion, Judge Morris would essentially end any state or court supervision of Mr. St. Francis.

And it would leave unresolved a question that clearly worries the judge, and other state and mental health practitioners who have dealt with him: Is he a potential sex offender, and as such a threat to public safety?

As he sat on the bench Thursday, June 17, at the latest of a long series of hearings on Mr. St. Francis, Judge Morris faced two radically different views of the man.

His lawyer and his advocates, his wife and his friends, see him as a victim of a system that exaggerated both his disability and his potential to harm others. As a result, they said, Mr. St. Francis spent 14 years in a system that confined him, humiliated him, over-medicated him with psychiatric drugs, and kept him far away from “normal” people and relationships.

On Thursday his lawyer, Susan Davis, went a step further and maintained that her client is not mentally retarded. It was that diagnosis, accepted by a Superior Court judge in 1996, that cost Mr. St. Francis his freedom and put him in the hands of a program that tried to help him while, at the same time, protect the public from him.

On the other hand, Judge Morris must consider a file on Mr. St. Francis that runs to 1,100 pages, and apparently contains allegations and evaluations which raise the alarming possibility that, left to his own devices, he could become a sex offender. Although the Chronicle has been granted limited access to the Family Court proceedings, which are normally held behind closed doors, the newspaper is not privy to the documents which support this view of Mr. St. Francis.

A year ago his problems seemed close to resolution. Judge Morris’ predecessor in the case, Judge Robert Bent, had agreed that Mr. St. Francis should be released from the control of his state guardian. She was replaced by Janet Reed of Albany, an advocate for Mr. St. Francis and a determined foe of the program, Safe Choices, that controlled his life for years.

Run by Northeast Kingdom Human Services, the local community mental health agency, Safe Choices was created to deal with sex offenders who are so mentally handicapped that, as a constitutional matter, they cannot be tried for their crimes.

Mr. St. Francis does not fit that description. He is one of several men who were sent to Safe Choices because a guardian or family member was worried about their sexual behavior.

And far from being too mentally disabled to stand trial, Mr. St. Francis has on at least three occasions been the subject of minor criminal charges brought by his keepers in Safe Choices.

On the day she took over as Mr. St. Francis’ guardian, in late July last year, Ms. Reed permitted him to marry Kathy McCammon, a woman who, state officials have repeatedly asserted, abused him in 2003 by sleeping with him while serving as his caregiver. That allegation has been investigated, but never proven, and both Ms. McCammon and Mr. St. Francis deny it.

Under a carefully negotiated court order, Mr. St. Francis was to be treated by Sterling Area Services, a mental health agency based in Morrisville, and to live under the close supervision of a couple in Northfield.

When Mr. St. Francis failed to keep an appointment with a Sterling therapist and moved in with his new wife, the agency terminated its treatment.

Judge Morris ruled in May that Ms. Reed violated the court order when she permitted her ward to marry and change his residence. Among the possible consequences for her, the judge wrote, could be a finding of contempt of court.

Among the consequences for Mr. St. Francis, he said, could be a return to state guardianship.

But in court last week a spokesman for the state resisted that possibility.

Assistant Attorney General Jennifer Myka was there to represent the Department of Disabilities, Aging and Independent Living (DAIL), which oversees the state guardian system.

“It would be extremely difficult, if not impossible, for the department to take over Mr. St. Francis,” she told Judge Morris.

Given all that’s happened between the personalities involved, she said, “I just cannot see how we can interject ourselves in this… in a way that would be productive.”

Nor did Sterling Services show any appetite to resume treatment of Mr. St. Francis. “Sterling doesn’t believe it can get involved at this time,” said its attorney, Robert Halpert.

The private guardianship has failed, Judge Morris said in obvious frustration. “The question is, what are we going to do?”

If he ordered another risk assessment of Mr. St. Francis, the judge asked, “can the department be of any assistance?””

“Certainly, the department could arrange for another assessment,” Ms. Myka replied.

Mr. St. Francis’ attorney, Ms. Davis, tried to shape the nature of any further evaluation of Mr. St. Francis.

“It’s not the evaluation per se we’re concerned about,” she told the judge. “The prior evaluation was based on tons and tons of records. Many were exaggerated or false.”

A new evaluation should be done without reference to those records, she argued.

But without them, Judge Morris replied, “How could it be a competent evaluation?”

In the end, Judge Morris ordered a new assessment that would include a “psycho-sexual” evaluation. He asked Ms. Myka to arrange for a specialist for the job, after consulting with Ms. Davis and Trudy Miller, the attorney for Ms. Reed.

Ms. Davis could obtain independent evaluations, he noted, and present those to the court. She and Ms. Miller could also challenge the findings of the court-ordered evaluation, he added.

He set the next hearing on the matter for early August.

In the lengthy motion she filed to terminate the guardianship altogether, Ms. Davis wrote that “two separate and independent psychologists have determined George St. Francis to NOT be mentally retarded.”

Until September 2009, Ms. Davis said, the people in charge of Mr. St. Francis medicated him with Prozac, lithium carbonate, Topamax and Seroquel. “He was taking ALL of these, concurrently, and has been for years,” she wrote.

“Side effects of these medications include drowsiness, dizziness, fatigue/insomnia, and headaches. Side effects of the lithium include blackouts, seizures, slurred speech and confusion. Side effects of Topamax include mental and physical slowing and delays, coordination problems, confusion, difficulty with concentration and attention.”

“Today,” Ms. Davis wrote, “clear of thought and medication, with a home, a wife, a life on the farm and the security that that brings, he no longer wants a guardianship of any kind.”

Though he has attended the hearings on his fate, Mr. St. Francis has never had an opportunity to testify. On Thursday, waiting in the corridor for proceedings to start, Mr. St. Francis chatted with his guardian’s husband, Alan Reed, who seems to be a particular friend.

Mr. St. Francis, a large man with a quick smile and a keen sense of humor, sought detailed advice from Mr. Reed on how to deal with a tractor that had broken down on his wife’s farm.

NEWPORT — At a hearing Monday in Orleans Family Court, Judge Walter Morris declined a formal request that he change his mind, and insisted that George St. Francis undergo a psycho-sexual evaluation.

In his efforts to win his freedom from court and state control, Mr. St. Francis faces official concerns that he is a potential sex offender. Judge Morris ordered the psycho-sexual evaluation in June as part of a more general evaluation of Mr. St. Francis, who was judged to be retarded by a Superior Court judge in 1996, when he was 18.

His lawyer, Susan Davis, argues that Mr. St. Francis is neither dangerous nor retarded. In the “motion for extraordinary relief” she filed with the court on July 13, Ms. Davis argued that the court lacked jurisdiction to subject her client to a procedure which she called “intimate, probing, distressing and invasive.”

However, referring to an evaluation of Mr. St. Francis that was conducted in October 2009, Judge Morris said “there is an evaluation that frankly says there is a high degree of risk.”

He added, however, that he believes the specialists who treat and measure sexual aberrations have dropped a particularly controversial piece of apparatus called the “penile plethysmograph.” In case they haven’t, he added, he would order that the plethysmograph not be used on Mr. St. Francis.

The device was used to measure a man’s response to particular types of sexual stimuli.

In her motion, Ms. Davis said that “a psycho-sexual evaluation may include up to six hours of interrogation, forced viewing of sexually suggestive or violent materials, and in some cases linking the individual’s private parts to electronic probes to determine his or her response to sexual stimuli.”

One former client of the Safe Choices program, which imposed its treatment on Mr. St. Francis for years, told the Chronicle that he had been subjected to a plethysmograph test.

Judge Morris also declined to grant Ms. Davis’ request that he put a hold on the Family Court proceedings while she appealed his decision to the Vermont Supreme Court.

Monday’s hearing was a small part of a case that has been before Family Court for well over a year.

Mr. St. Francis was under the control of a state-appointed public guardian, and a reluctant client of the Safe Choices program when it began.

The court put him under the control of a private guardian, Janet Reed, who is a determined critic of the Safe Choices program and its methods.

But Judge Morris has ruled that Ms. Reed violated the court’s order when she permitted Mr. St. Francis to get married and move out of a Northfield home in which he was to be closely supervised.

The court is struggling with the question of what to do with Mr. St. Francis next.

Meanwhile, Ms. Davis is prepared to present evidence that her client, while not of average intelligence, does not meet the low standard required to deny him the freedoms of an ordinary citizen.

Testimony from expert witnesses for Mr. St. Francis is expected at a hearing in early August.

NEWPORT — Hour after hour, month after month, year after year, George St. Francis has sat in courtrooms and listened to important people talk about him.

Judges, lawyers, guardians, state officials and psychologists have discussed his intelligence, or lack of it, his sexual proclivities and, critically, his future.

Finally, on Monday, Mr. St. Francis got a chance to speak for himself.

A day-long hearing ended with Mr. St. Francis in the witness chair, chatting with Judge Walter Morris. They talked about a tractor Mr. St. Francis helped repair on the Wolcott farm where he lives with his wife, Kathy, and his friend Dayton Lamphere.

They talked about how Mr. St. Francis handles his money, and who gets him to his sessions with his therapist in Newport.

Despite his pleasant, conversational tone, Judge Morris wasn’t just passing the time. He was, finally, seizing the opportunity to make his own assessment of the man whose freedom he holds, however reluctantly, in his hands. His questions seemed designed to gain a sense of what Mr. St. Francis can do, how closely he is supervised, how he might fare in the world if freed from the constraints he’s lived under since 1996.

Underlying those genial questions about Mr. St. Francis’ personal welfare lay the question that has followed him through his adult life: If he is left on his own, will the public be safe from him?

Mr. St. Francis has his advocates, and they argue passionately that, ever since he was legally labeled retarded when he was 18, Mr. St. Francis has been misdiagnosed and mistreated by the state and its agents.

He has won some major battles, with their help. First he got away from Safe Choices, a treatment and supervision program for dangerous sex offenders who are so severely mentally handicapped that they can’t be put on trial.

Mr. St. Francis didn’t belong in that program, and there is ample evidence on the record that it treated him wretchedly.

Then he got away from the control of the state-appointed guardian who sent him to Safe Choices and left him there, over his strenuous objections, for 13 years.

He escaped the close supervision of Sterling Area Services in Morrisville when his new, private guardian let him get married and move onto his bride’s farm.

Now, finally, the only authority left to restrict him is the Orleans Family Court in the person of Judge Morris, a soft-spoken, invariably polite former public defender who is just weeks away from retirement.

During a brief hearing on Friday, August 6, Sterling bowed out of the case. Its attorney, Robert Halpert, seemed particularly cheerful as he strode out of the courtroom.

On Monday Vida Lyon of the state Office of the Public Guardian and her attorney, Special Assistant Attorney General Kim Velk, gave up their seats at a table inside the bar in the big courtroom and took folding chairs alongside a handful of other interested spectators. “The state is not advocating now for any particular position,” Ms. Velk had told the judge on Friday.

That left no one in the courtroom to argue with the two lawyers who advocate for Mr. St. Francis — his lawyer, Susan Davis, and Gertrude Miller, who is representing his new guardian, Janet Reed.

“It will not be an adversarial proceeding,” he said. There won’t be anybody to jump to his or her feet and oppose the introduction of any evidence the two remaining lawyers might offer, he noted.

And if they led their witnesses, who would object?

Judge Morris finally did so as the afternoon wore on, in the mildest possible terms. Of the evidence she was drawing from a witness, the judge told Ms. Miller, “Its probative value is affected by the leading nature of your questions.”

If he didn’t cross-examine the witnesses, Judge Morris did take his turn, after the two attorneys, in asking them questions.

Ms. Miller’s first witness offered evidence that undermined the basis of the judgment that put Mr. St. Francis’ life in the hands of the state.

Dr. Eric Mart, a forensic psychologist from Manchester, New Hampshire, said — in more technical language — that Mr. St. Francis isn’t retarded.

In a test he administered earlier this year, Dr. Mart said, Mr. St. Francis demonstrated an IQ of 80, well above the score of 70 required for a diagnosis of mild mental retardation.

Mr. St. Francis, the doctor testified, scored from “moderately below average to below average.”

The “composite intelligence” figure of 80, he added, was derived from scores of 72 in verbal intelligence and 92 in nonverbal intelligence.

Asked to explain how his results differed from earlier, lower scores, Dr. Mart said a person’s IQ doesn’t normally vary over time. If it does, he said, it could indicate other problems, like cultural deprivation or a learning disability.

Dr. Mart said he had also subjected Mr. St. Francis to a “Static 99” measure used to predict the likelihood that a sexual offender will commit another serious crime. (Mr. St. Francis’ lawyers insist, however, that he has never been charged with or convicted of a serious crime.)

Again, his results were better than earlier evaluations of Mr. St. Francis had shown.

Previously rated 5 on a scale of 0 to 10, Mr. St. Francis scored a 4 on Dr. Mart’s test. That would indicate a “moderately high risk,” he said in an interview later.

Because these ratings are matched against the actual behavior of convicted sex offenders, Dr. Mart told the court, the predicted likelihood of reoffending shifted down between 2003 and 2008.

Under the new standard, he testified, there was an 7 percent chance that Mr. St. Francis would offend over a five-year period; an 8 percent chance over ten years. In an earlier application of the test, Mr. St. Francis’ results were much higher: a 26 percent chance over five years and 35 percent over ten years.

In response to a question from the judge, Dr. Mart said Mr. St. Francis poses an “elevated” risk.

“I wouldn’t leave him alone with children,” the doctor said.

After making four round trips from Rutland to hearings that were too filled with legal argument to hear his testimony, psychologist David Egner finally took the stand Monday.

He testified that Mr. St. Francis’ intelligence is “clearly within normal limits.”

“He has been profoundly misdiagnosed,” Dr. Egner told the court. That, he added, is “something I’ve seen a great deal.”

“George has experienced a great deal of trauma,” the psychologist said. He went through the first grade three times, he testified, and was removed from his family home “for abuse multiple times by a parent.”

On the basis of his testing, Mr. Egner said, “it was obvious he has visual, motor and perceptual difficulties that have nothing to do with intelligence.”

“It is abundantly evident that he is not retarded,” Mr. Egner concluded. “George has excellent intelligence.”

When she took the stand, mental health counselor Gretchen Lewis said she has seen many changes in Mr. St. Francis over the past year.

When he first came to her, shortly after leaving Safe Choices, she testified, “He was very withdrawn, spoke very little, made little eye contact.”

“My initial diagnosis was an adjustment disorder, having to come from being in that program for so many years and having to fit into society.”

After about 30 sessions with him, Ms. Lewis said, “It’s pretty amazing how George has changed himself around.”

Their conversations could easily last more than the standard therapeutic hour, she said. “He has a lot to say, talks about how he’s feeling, it’s just very free-flowing and natural.”

Ms. Lewis said she meets alone with Mr. St. Francis, and has never felt physically threatened by him.

“What do you want?” Ms. Davis asked Mr. St. Francis when he finally took his turn on the stand.

“What I want is my life,” Mr. St. Francis replied. “With my wife, to be happy all the time, nobody bugging me.”

NEWPORT — George St. Francis’ legal champion, Gertrude Miller, is attacking a brief, almost off-handed legal proceeding that, 14 years ago, placed his adult life in the hands of the state of Vermont and the Safe Choices Program.

In February 1996 a Chittenden Superior Court judge ruled that Mr. St. Francis “is 18 years of age and a mentally retarded person in need of supervision and protection for his own welfare.”

That provided the foundation for everything the state did to and for Mr. St. Francis. It gave his guardian the power to enroll him in Safe Choices, a program run by the local community mental health agency, Northeast Kingdom Human Services, to deal with dangerous sex offenders who are so retarded that they can’t be tried for their crimes.

Mr. St. Francis is one of several men who don’t fit that description, but who found themselves enrolled in Safe Choices against their will. Several have said they were told that, if they tried to get out of the program, they would be sent to jail. Safe Choices has denied that.

At a reported cost that rose, in Mr. St. Francis’ case, to $230,000 a year, Safe Choices kept him and a few other men in a remote, end-of-the-road farmhouse called Lowell House under 24-hour, arm’s length supervision.

Ms. Miller, a Newport attorney, has worked to help a handful of men like Mr. St. Francis free themselves from Safe Choices.

He accomplished that in the spring of 2009, and has lived most of the time since with his new bride and a mutual friend on their farm in Wolcott.

But because his new living situation violated the terms of the court order that won his release from state guardianship and got him a new, private guardian, Mr. St. Francis’ case is still before Orleans Family Court and Judge Walter Morris.

Ms. Miller is currently the attorney for Mr. St. Francis’ private guardian, Janet Reed of Albany. Judge Morse has said Ms. Reed is in contempt of court for allowing Mr. St. Francis to marry, move in with his bride, and reject the services arranged with another community mental health agency, Sterling Area Services of Morrisville.

Mr. St. Francis is represented by attorney Susan Davis, who is easing herself out of her law practice to work as managing editor of the Newport Daily Express.

At a hearing in Family Court on Friday, November 5, Judge Morris said the next step in a seemingly endless case is to settle the matter of Mr. St. Francis’ continuing guardianship, and its terms.

But much of Friday’s hearing was devoted to taking evidence on Ms. Miller’s motion to “vacate the February 21, 1996, order of protective supervision and dismiss this case in its entirety.”

In a nutshell, Ms. Miller is arguing that the proceeding that cost Mr. St. Francis his freedom was invalid because there was never a hearing in Family Court, and because no guardian ad litem was appointed to safeguard his legal rights.

As an adult whose competency to understand legal proceedings is in question, Mr. St. Francis currently has Connie Daigle, a former Superior Court Clerk, as his guardian ad litem.

She held the job in 1996, Ms. Hill testified, and had reviewed the records in Mr. St. Francis’ case.

There was a petition for guardianship filed by a private individual, she said, which said that he was found to be developmentally disabled when he was 15.

There was a notice of hearing, though the hearing was subsequently cancelled. There was a stipulation, signed by Mr. St. Francis’ attorney, Laura Philipps of the Disability Law Project, and by Deputy State’s Attorney Margaret O’Rourke.

It said in part: “Respondent has been diagnosed as having significantly subaverage intellectual functioning which has been manifested prior to the age of 19 and which exists concurrently with deficits in adaptive behavior.”

Another important paragraph began: “Respondent is in need of protection and supervision for his own welfare….”

The Chittenden court file also includes an order signed by Judge Amy Davenport. It repeated much of the stipulation, and put Mr. St. Francis under the supervision of the commissioner of the Vermont Department of Mental Health and Mental Retardation.

It closed, however, with an important qualification:

“Recognizing that the respondent’s ability for maximum self-reliance is still developing, it is further ORDERED that the respondent’s continued need for protective services be reviewed by the Court on the second anniversary of the issuance of that order.”

That part of the order was never carried out. While other courts have since acknowledged that failure, they have come up with no sanction for the officials who failed to obey it, nor any remedy that would compensate Mr. St. Francis for the court’s failure to check on his progress.

Ms. Miller’s claim that the 1996 proceedings were fatally flawed will be argued at a later hearing.

copyright the Chronicle January 12, 2011
NEWPORT — George St. Francis was back in court Monday to hear two attorneys argue that the legal process that cost him his freedom 15 years ago was seriously flawed.

It was so flawed, attorney Gertrude Miller argued, that the court should drop the case that has been moving through Orleans Family Court since 2008. That would restore Mr. St. Francis’ full rights as a citizen and free him to pursue his life without the supervision of any guardian, public or private.

Ms. Miller filed her motion last year, and evidence was taken at a hearing in November. Monday’s three-hour court session was devoted to arguments on the motion.

Mr. St. Francis, now 33, had just turned 18 when he was found to be “in need of protection and supervision for his own welfare,” by a judge in Chittenden County. That led to the appointment of a public guardian, who enrolled him in the Safe Choices Program operated by Northeast Kingdom Human Services, the Newport-based community mental health service.

The program was designed to treat — and protect the public from — serious sex offenders who were so severely mentally disabled that they could not be tried or convicted in the criminal courts.

Mr. St. Francis does not clearly meet either of those criteria. He has never been charged with a serious sexual offense, and the claim that he suffers a severe mental disability has been challenged by his current attorney, Susan Davis, and two expert witnesses.

After a legal battle with the state, Mr. St. Francis won the right to leave the Safe Choices program in the spring of 2009.

However should Judge Walter Morris deny Ms. Miller’s motion to dismiss, he said Monday, he may find it necessary to appoint a new guardian for Mr. St. Francis, and impose some level of treatment and supervision.

Ms. Miller is in the case, not as an attorney for Mr. St. Francis, but for his private guardian, Janet Reed of Albany. Judge Morris has ruled that Ms. Reed is in contempt of court for allowing Mr. St. Francis to get married, move in with his new bride, and drop out of a court-approved treatment program. Ms. Reed was not in court Monday.

Ms. Miller cited three problems with the 1996 proceedings in Chittenden County.

While state law required that a state’s attorney initiate an action to put an adult under state supervision, she said, the action in Mr. St. Francis’ case was started by a private citizen, his foster mother.

There was no guardian ad litem appointed to protect Mr. St. Francis’ rights, Ms. Miller said. And the court’s ruling was based on a stipulation by lawyers on both sides, with no court hearing.

Ms. Davis, Mr. St. Francis’ lawyer, argued that her client never had a chance to challenge the proceedings in 1996.

“In this case, somebody stepped outside the box, and due process went down the drain,” she said.

Her client’s treatment, she added, “was the byproduct of the breakdown of an overloaded system. It happens — and it happened in this case.”

Ms. Miller argued that in 1996 Mr. St. Francis did not have the legal protections he was entitled to. “This was a group mistake, a group misunderstanding,” she said.

All the government and private agencies which once fought to keep Mr. St. Francis under their control have withdrawn from the case, and that has left Judge Morris in an uncomfortable position.

Ms. Miller and Ms. Davis work together on his behalf, as something of a legal tag team. If there are arguments to be made against them, they can only come from the judge himself.

On Monday he noted that it is not unusual, in mental health cases, for the judge to rule on the basis of a stipulation without taking evidence at a hearing.

However, Ms. Davis countered, in such cases the person whose liberty is at stake is represented by a guardian ad litem, a non-attorney appointed to make the sort of decisions a competent person might be expected to make in his own interest.

Mr. St. Francis didn’t have a guardian ad litem in 1996. He has one now, in the person of former County Clerk Connie Daigle, who has been present at all the hearings in his case.

Judge Morris also noted that there had been several proceedings in Probate and Family Court on Mr. St. Francis. In none of them, he said, had his attorneys challenged the original 1996 process.

If a procedural failure isn’t challenged at the first opportunity, the judge indicated, the opportunity to challenge it later may be lost.

And in every court proceeding, the judge noted, Mr. St. Francis was represented by an attorney.

Until 2008, however, Mr. St. Francis’ attorneys were chosen by his state-appointed guardian, who presumably picked a lawyer who would pursue what they felt was best for him. That was to remain under close, 24-hour, arm’s length supervision in a remote end-of-the-road house maintained in Lowell by Safe Choices.

When Mr. St. Francis finally found a lawyer who fought vigorously to get him out of Safe Choices and under the control of a private guardian, the state objected vigorously.

The lawyer was Tim Yarrow of Hyde Park. In a motion she filed in 2008, Jennifer Myka, a special assistant attorney general, referred to Mr. Yarrow as Mr. St. Francis’ “apparent” attorney.

The commissioner of the state Department of Disabilities, Aging, and Independent Living, she argued, had the exclusive power to obtain legal advice on his behalf.

Mr. Yarrow left the case after his client’s public guardian was replaced by Ms. Reed, a private guardian with a clear commitment to getting Mr. St. Francis out of the Safe Choices program.

Judge Morris said Monday that he will rule, in writing, on Ms. Miller’s motion to dismiss the proceedings. In case he should deny the motion, he asked the court clerk to schedule a two-day hearing on what, finally, the court might do about Ms. Reed’s contempt, and about the future of George St. Francis.

copyright the Chronicle January 19, 2011
Smokey (his choice of a false name) was living quietly in the countryside under the supervision of a single woman when the program that controlled his life, Safe Choices, brought a friend over to visit in 2009.

The two men spent the night in a tent, and there was an opportunity for sexual activity. That, it seems, was the point.

Smokey, at the time, was an angry and unwilling “consumer” of the Safe Choices program, which was established to treat — and protect the public from — serious sex offenders who are so profoundly mentally disabled that they can’t be tried for their crime.

Smokey got into some trouble as an adolescent, but has never been charged with a sexual offense as an adult.

The friend who was delivered to his home is 31 years older than Smokey and has been convicted of six counts of sexual assault and lewd and lascivious conduct with a child.

He lives under close supervision at Lowell House, one of Safe Choices’ residential facilities, as a condition of his probation. He can be found on Vermont’s sex offender registry. (The Chronicle promised Smokey we would not use his friend’s real name, so we’ll call him Joe.)

Establishing a sexual relationship between Smokey and Joe was, as far as it is possible to tell, part of their treatment program in Safe Choices.

It also seems that the program, in its effort to deal with men who, it insists, are sexually dangerous, is concerned for their sexual potency.

In 2006, when Smokey encountered difficulty getting an erection, Safe Choices sent him to a doctor where he was given Cialis, the drug that is heavily advertised on television as a cure for erectile dysfunction.

When Smokey discarded the drug because it made him feel dizzy and nauseous, Kathy Aiken, the coordinator of Safe Choices, wrote a letter to his doctor asking that he be prescribed some more.

Smokey outlined this story in an interview in May 2010, shortly after Safe Choices, surprisingly, let him walk away from the program.

He is an engaging man, friendly, extremely talkative, and remarkably well spoken for one whose mental capacity confined him to a decade in a program that angered, embarrassed and confused him.

But he seemed inclined to tell an interviewer what he wanted to hear, and his story was so bizarre that this newspaper set it aside.

Smokey has since obtained copies of his extensive record from Safe Choices, and on Monday he made part of that record available to the Chronicle. The documents confirm his story.

Smokey said Monday that he is not a homosexual. He’d like to be in a relationship with a woman, he said, “because I always talked about having a family someday.”

At several points in his records, Smokey talks about particular women he would like to date, and about his sadness when one, who he’d invited to his birthday party, failed to appear.

Did he feel that the Safe Choices staff was pushing him into a sexual relationship with Joe?

“Yeah,” he replied. “Joe liked me as a best friend. They found out Joe liked me as more than just a friend.

“Me and Joe did end up together. It was in a tent, and we didn’t do anything. We were camping out, just two normal friends.”

Whatever the truth of the matter, Smokey was clearly not believed at Safe Choices. He continued:

“They said ‘We believe you had intercourse.’ I said no, he slept on the mattress and I slept on the ground.”

The records show that Smokey was particularly concerned that his relationship with Joe not become a topic at the weekly group therapy meetings. Conducted by Saul Schoenberg, a licenced psychologist who heads Resolutions Program, Inc., the sessions form the core of Safe Choices’ treatment program. According to other former participants in the program, they focus on the clients’ sexuality, on their sexual fantasies — acceptable and aberrant — and on what outlets they are able to find, like masturbation.

In July 2009, staff member John Ullrich wrote in his client notes, Smokey “was anxious and nervous that it was going to be brought to Group what happened between him and the client during a visit. I assured Smokey that Saul stated that this will not be brought up in group and that he will take care of this matter individually in private sessions.”

That same month, Mr. Schoenberg reported on a session he held with Smokey and Joe. The handwritten notes are hard to read, but leave an impression of something like a couple’s therapy session. There is talk of consenting to and initiating sex, of sexual control and feelings of security.

In January 2010, psychiatrist Craig Van Tuinen wrote in his notes on a meeting with Smokey that Joe, “another client, stayed overnight at the house which brought up a lot of concerns however they apparently worked out an agreement and Smokey was very clear about no physical contact.”

Smokey was clearly not fond of the group therapy sessions. An unsigned “psychiatric appointment information sheet” dated December 2, 2008, reports:

Smokey “has blown up at group and was yelling threats outside the office that were in the nature of reporting the program to lawyers. Kathy has sent a e-mail to Smokey’s guardian pertaining that he needs to find a different program for Smokey. Cause he is now scaring the other clients in the group as well with his threatening outburst towards Saul and the program.”

Asked on Monday if he has a temper, Smokey replied, “Yes, sometimes it gets pretty escalated, depending on the situation. It’s mostly yelling. At Safe Choices I have punched the refrigerators and the freezers and the walls, but nothing physical to any person or human being.”

Safe Choices didn’t find a different program for Smokey. But the program seems to have simply let him walk away in the spring of 2010. He lives alone in an apartment, is looking for a job, and said he has an appointment to get his driver’s license.

Although he said he finds it hard to sit still, Smokey said he has stopped taking any of the long list of psychiatric drugs that were prescribed for him at Safe Choices.

In a remarkable recital, he rattles through the long list of drugs, citing their daily doses and their purpose — chiefly anti-anxiety.

“I have been on these drugs for years and years,” he explains, “and I know them by heart. I think, altogether, I was taking seven medications.

“They didn’t usually force you,” he said of his drug regimen. “They would manipulate you. ‘You take your pills and we’ll talk about rewarding you for making the right choice.’

“Safe Choices sounds like wrong choices to me,” he added.

Why would the program have pushed him together with Joe?

“They wanted to manipulate the system,” he said Monday, “to keep him on probation longer.”

Asked the same question last May, Smokey had a slightly different answer.

“To pin things on us,” he said. “To experiment.”

If his state-appointed guardian hadn’t put him in the Safe Choices program at 18, Smokey was asked Monday, what would his life have been like?

“I probably would have had a normal life,” he replied. “A family; a decent job.”

And why, finally, was he sharing these embarrassing moments of his life with a newspaper?

“To get justice on how I feel and how I was treated — and others in the program, too.”

It would be distressing to think that a young man who is under closely controlled state custody for treatment of alleged sexual problems might be exposed to the advances of a convicted sex offender, 31 years his senior, whose crimes include lewd and lascivious conduct with a minor.

That such an offender would be delivered to the young man’s home and left with him in a tent overnight would be unthinkable, if it wasn’t the truth.

There is something deeply perverse about the Safe Choices program. And it’s time to shut it down.

There is a need for a program that does the job Safe Choices was created to do. That is to treat and closely supervise men who have committed serious sexual offenses and are so mentally handicapped that, as a constitutional matter, they can’t be brought to trial.

The problem is, none of the “clients” of Safe Choices we have talked to fit this category.

Safe Choices has been nibbling at the edges of its target group, bringing in people who, in some cases, appear to have sufficient intelligence to take care of themselves — and certainly to be held accountable, like all the rest of us, for any crime they might commit.

In other cases, Safe Choices has taken on clients whose worrisome adolescent behavior sent the adults responsible for them looking for help. Safe Choices was happy to provide it.

Safe Choices should be replaced with an organization — call it No Choices — to deal with sexually dangerous and mentally disabled men.

As for the Smokeys and Georges and Wendells and Donalds and Rodericks who lost years of their lives to Safe Choices, we’ll just have to figure out a better way to help them. — C.B.

NEWPORT — If there were any flaws in the legal process that made George St. Francis, in essence, a ward of the state 15 years ago, they are too stale to warrant releasing him from any further court supervision, Judge Walter Morris has ruled.

The judge denied a motion filed by Gertrude Miller, attorney for Mr. St. Francis’ guardian, Janet Reed, that the case involving Mr. St. Francis and his need for treatment and supervision should be dismissed. It should be, Ms. Miller argued, because of errors in the process that transferred his guardianship to the Department of Mental Health and Retardation (now the Department for Aging and Independent Living) in 1996.

Mr. St. Francis had just turned 18, too old to continue in the custody of the state Department of Children and Families.

His state guardian enrolled him in the Safe Choices program operated by Northeast Kingdom Human Services to treat — and control — men who are charged with serious sex crimes but lack the mental capacity to be put on trial.

Mr. St. Francis does not fit either of those categories. He has never been charged with a serious sexual offense, though he has been convicted of engaging in a prohibited act. That very conviction belies any claim that he is too mentally handicapped to stand trial, and experts retained by his attorney have challenged the original finding that he is seriously retarded.

Mr. St. Francis’ strenuous efforts to get out of the Safe Choices program, which he found confining, demeaning, and humiliating, led to the case which has been moving through Orleans Family Court since late 2008.

The case appeared to be resolved almost two years ago when Northeast Kingdom Human Services released Mr. St. Francis from Safe Choices, and the state yielded its guardianship powers over him to Ms. Reed, a private guardian appointed by the Probate Court.

But the settlement broke down when Ms. Reed permitted Mr. St. Francis to get married and withdraw from the alternative program of treatment and supervision arranged with Sterling Community Services, a Lamoille County community mental health agency.

Judge Morris has found Ms. Reed in contempt of court. He has yet to impose any sanctions on her, though he has said he could, among other things, dismiss her as Mr. St. Francis’ guardian.

A difficulty the judge faces is that the state has lost any interest in resuming its guardianship, and has withdrawn its attorney from the case. So has Sterling Community Services.

But, apparently because of the contents of evaluations of Mr. St. Francis that have never been made public, Judge Morris has shown a clear reluctance to leave Mr. St. Francis free of any official supervision.

The 1996 records from Chittenden Family Court indicate that Mr. St. Francis was deprived of his rights as an adult without a hearing, on the basis of a stipulation between an attorney appointed to represent him, and an attorney for the state.

Judge Morris notes that on February 20, 1996, one day before his hearing was scheduled, his attorney wrote to the court that she “was certainly intending to speak with Mr. St. Francis, but had not… had an opportunity to do so.”

The attorney, Laura Philipps of the Developmental Disabilities Law Project, signed a stipulation that was the basis of the court order, but Mr. St. Francis did not.

In the 1996 file, Judge Morris wrote, there is no finding that Mr. St. Francis waived his right to a hearing “knowingly and voluntarily,” that his lawyer consulted with him before signing the stipulation, or that it was found to be in his best interest.

Nor were his rights protected by a guardian ad litem. None was appointed in his 1996 case.

“The question remains,” Judge Morris wrote, “as to the significance of the apparent failure of the court to make the findings” that Mr. St. Francis’ right to a hearing had been protected.

“The difficulty with that in this case lies in the fact that a substantial period of time has ensued since the entry of the orders that are presently challenged,” the judge wrote.

A greater problem, he added, is that in past proceedings “Mr. St. Francis has been represented by counsel who have vigorously and independently sought to assert his interest as to guardianship for a period of at least six years now, without prior challenge to the foundation upon which the orders or guardianship were originally entered.”

The court order was based on an evaluation of Mr. St. Francis, Judge Morris wrote, and there was a factual basis for its decision.

“Otherwise stated, this is not a case in which orders were made grossly and in unmistakable error without any basis at all.”

All in all, Judge Morris ruled, the problems with the original proceedings were an “insufficient basis” to dismiss the case.

by Chris Braithwaite

copyright the Chronicle March 16, 2011

HYDE PARK — William Bennett clearly didn’t want to leave for Lowell House. Seated on a bench in the corridor outside the second-floor courtroom in the Lamoille County Courthouse, Mr. Bennett wanted to spend a little more time with his mother, Tracy Gilman, and with his younger siblings, 23-year-old Nate and 21-year-old Amber.

But the woman who had brought him there for Northeast Kingdom Community Services, Tammy Crowe, said she needed to get back to work.

A few minutes earlier, in a surprising show of leniency, Ms. Crowe had said she would drive back alone, and Ms. Gilman could drive her son to Lowell House after their visit.

But she had changed her mind. Mr. Bennett would have to go back with her.

Though he’s 24 years old, William didn’t look like a big brother to Nate and Amber. At four feet, 11 inches and 120 pounds, with close-cropped hair, a new suit and shiny black shoes, William looked like he might be ready to pick up his date for the junior prom.

But William hasn’t been in school since he graduated from Lyndon Institute. In fact, he hasn’t been doing much of anything.

Though, like her eldest son, she’s a small person, Ms. Gilman gives off an air of tough determination. But when she discusses decisions she made that led the family to this courthouse corridor on Friday, March 4, Ms. Gilman can be reduced to tears.

The first such decision was that William needed care the family could not provide.

William was slow. “I don’t think he is retarded,” Ms. Gilman said Friday. “I think he has a learning disorder.”

At any rate, she said, “he was a growing person with a disability. His body was maturing, and his intellect and social skills were lagging a little bit behind.”

Through a local community mental health agency, Northeast Kingdom Human Services, Ms. Gilman placed William in the home of a woman who, she was told, had some expertise in dealing with people like William.

Taking that advice, Ms. Gilman said tearfully in a telephone interview, was one of the biggest mistakes she ever made.

Trouble started when a slightly older girl came to live in the same home. She was 19, and William was 18. William’s therapist flagged the problem, warning that William was uncomfortable with the girl in the house. But she stayed, and after the two were taken to spend a day at a local hotel with a pool and a sauna, the girl lodged a complaint.

William was charged with lewd and lascivious conduct in Caledonia District Court. After an evaluation, the court determined that, as a constitutional matter, he lacked the mental capacity to stand trial.

At that point the state invoked Act 248, which provides for the civil commitment of mentally disabled people who are a danger to others.

Sexual assault, and lewd and lascivious conduct with a child, are among the acts which can establish that danger of harm.

But when she applied to Lamoille Superior Court on February 27 for a writ of habeas corpus, attorney Gertrude Miller pointed out that the charge William had faced, lewd and lascivious conduct, did not rise to that standard — there was no child involved.

Her argument was simple: The court proceedings of November 2006 that placed William in the custody of the commissioner of the Department of Aging and Independent Living (DAIL) were so flawed that they “did not and do not give the commissioner legal authority to have custody of Mr. Bennett.”

In court on March 4, Caledonia County State’s Attorney Lisa Warren referred Judge Dennis Pearson to the police affidavit on which the charge against William was based.

“It showed bodily harm to the victim,” she said. “The state did feel there was enough to possibly charge attempted sexual assault.”

Kim Velk, the attorney for the DAIL, agreed.

“It’s not what’s charged, it’s the conduct,” she told Judge Pearson.

The judge noted that the state Supreme Court has recently grappled with that issue, and asked the attorneys for written arguments.

Ms. Miller also argued that, in those 2006 proceedings, her client had given up important constitutional rights without due process. She argued that neither William nor his mother, who was both his legal guardian and “guardian ad litem” during his criminal case, had signed the stipulation that confined him to the state’s custody.

To that, Ms. Warren, the prosecutor, replied that the court needs to see a transcript of the 2006 proceedings.

“The record will show that Judge Manley went around the room to make sure everybody was on board, including the mother,” she said.

Judge Pearson gave the lawyers until April 8 to read the transcript and file legal arguments.

The upshot of the 2006 ruling was that William was enrolled in the Safe Choices program. It is run by Northeast Kingdom Human Services to treat — and protect the public from — men who have been charged with a serious sexual offense and judged too mentally disabled to stand trial.

Asked in the courthouse corridor how she had felt about the 2006 stipulation, Ms. Gilman again became tearful.

“I was really scared,” she said. “I really did not understand what Safe Choices was. I had no idea.

“I had no idea there were no real rules, and no end date — that’s the biggest thing.

“I had no idea the annual reviews would be so one-sided.

“I had no idea they weren’t going to provide the services somebody with a disability needs to function, to be a productive, safe, well-adjusted member of society.”

William spent his first couple of weeks in Safe Choices at Lowell House, an isolated, end-of-the-road farmhouse in Lowell.

“I didn’t like it there,” he recalled.

Then, like most Safe Choices “consumers,” he lived in private homes with care providers who had agreed to keep him under 24-hour, arm’s length supervision.

The daily routine of Safe Choices consumers has been described in earlier Chronicle articles, both by the men themselves and former staff members, as boring, confining, isolating, humiliating, and devoid of any educational opportunity.

“I’d rather go to trial than spend another second in Safe Choices,” William said on Friday. “If it meant going to jail for a month, that’s what I would choose.”

And if he hadn’t had to spend those four years in Safe Choices?

“I’d probably be in college right now, getting a good education so I can get a good job. I’d probably be social, too, out in the community.”

William shares his mother’s assessment of his intellectual ability. “I do have a learning disability — not a very serious one,” he said.

In the fall of 2010 Ms. Gilman got a court’s permission to move her son out of Safe Choices and into the care of Sterling Community Services, a community mental health agency that serves Lamoille County.

That didn’t work out well either. William said he still received no education, but spent his time watching television and playing video games.

He was placed in the home of Wayne Demar of Eden, who testified Friday that he and his wife, Wendy, cared for Sterling clients who were in crisis and needed a place to go.

William said he wasn’t happy at the Demar house. They were smokers, he said, and smoked in the car while he was a passenger, though he suffers from asthma. He said they also rejected his doctor’s advice that he switch to a low-fat diet. And he found it hard to get the amount of exercise his doctor ordered.

Ms. Gilman turned to Ms. Miller, the attorney, whose efforts to help men trapped in the Safe Choices program have been covered in the press.

Ms. Miller, on her client’s behalf, asked Sterling to produce its records of William’s care and treatment. Ten days later, on January 31, Ms. Gilman said, “Sterling handed me a letter resigning as his service provider.”

Then on February 23 there was an incident at the Demar house. As William and his mother tell it, he made a swiping gesture with his hand while arguing with his host about a phone call he wanted to make to Ms. Miller.

William said he was just indicating that he wanted space, but Mr. Demar took it as a threat.

“He grabbed me by the armpits, threw me on the bed, pinned me to the bed, and said ‘Don’t raise a hand to me, boy,’ three times,” William said.

William said he found the incident painful. He sought, and obtained a temporary restraining order against Mr. Demar, barring any abuse.

Part of the March 4 hearing in Hyde Park was devoted to argument over whether that order should become permanent.

Sterling’s attorney, Robert Halpert, vehemently denied that any abuse had occurred. But Judge Pearson declined to hear any testimony about the incident itself. The issue before him, he said, was whether there was “the likelihood or danger of future abuse.” After hearing Mr. Demar testify that he would not accept William as a client ever again, and would avoid him if they met by chance in public, Judge Pearson vacated the temporary order.

Ms. Gilman said the case is scheduled to move to Caledonia County Probate Court on March 23. The state has filed a motion to have her removed as William’s legal guardian — a motion she plans to oppose.

Meanwhile, William has gone full circle. Because he is no longer under Sterling’s supervision, a court recently ordered him back to Lowell House, the residential facility operated by Safe Choices.

copyright the Chronicle May 4, 2011
Tracy Gilman is fighting the system, and she’s losing.

Ms. Gilman was drawn into battle on behalf of her son, 24-year-old Bill Bennett.

Because of limited mental capacity and a criminal allegation of lewd and lascivious conduct, Mr. Bennett has spent the last five years in the custody of the commissioner of the Department of Disabilities, Aging and Independent Living (DAIL).

The commissioners have confined him to a program called Safe Choices run by the local mental health agency, Northeast Kingdom Human Services.

But Ms. Gilman is still his legal guardian, and has continued to play an active role in her son’s life — and his therapy. That put her at odds with the people who have legal authority over her son, and the conflict has turned a diminutive woman into a warrior.

“A cause has been cast upon me,” she wrote recently on her new blog site, Safe Choices Abuse Victims. “I’m not an activist by nature but what I am is determined to bring about a change in the corrupt system of Human Services that portends to protect the public, while it loots our taxpayers and wields its power mercilessly over a disadvantaged population without the financial or intellectual resources to fight back. Bullying, brainwashing and medicating them into submission. I am a witness, and I will not be deterred by bullying.”

That’s not the language that got Ms. Gilman into trouble. In an earlier blog — one that can’t now be found on her site — she opened by writing that “Even though my son Bill isn’t a sex offender, he’s been court ordered to take part in the Safe Choices sex offender program.”

Ms. Gilman quickly learned that someone had been monitoring her blogs very closely. And she had just said the magic words.

A week ago she got an e-mail from Vermont’s new DAIL commissioner, Susan Wehry.

After quoting the opening lines of her blog back to her, Dr. Wehry wrote “I am not confident that you will be able to carry out your supervisory duties of protecting community safety given that you do not believe William committed these sexual offenses.

“Consequently,” the commissioner continued, “I am terminating unsupervised visits between you and William until you and William’s treatment team can meet to discuss this further.”

Ms. Gilman said in an interview she does not know whether her son committed the crime he was charged with because he was never tried or convicted. He was deemed to be mentally incapable of standing trial and put in the commissioner’s custody under Act 248, Vermont’s civil commitment law.

As for his guilt, she said, “I’m saying that we wouldn’t really know that without a trial, without all of the facts surrounding the incident that he was charged with.”

Far from denying that her son has problems with his sexuality, Ms. Gilman said she sought professional help for him, and enrolled him in Safe Choices before the incident that led to the charges against him.

As for the public’s safety, Ms. Gilman insists that she has followed all the rules imposed on her under Act 248.

“He’s always at arm’s length,” she said. “He’s always with me. I don’t leave him unsupervised.”

For Ms. Gilman — and, she says, for her son — the results of the commissioner’s ruling have already been devastating.

Bill had been spending three days a week, Saturday through Monday, with his mother, shopping, visiting with relatives, and undergoing sessions of physical exercise and psychological counseling Ms. Gilman had arranged for him.

Instead of having him at home on Saturday, Ms. Gilman arranged to take a ride with her son along the Newport bicycle trail. She was told that two Safe Choices workers would accompany them.

“I said, ‘Who are you guys?’ I didn’t recognize either one.”

She said the men gave her first names, but refused to give their last names. When she asked who they worked for, she said, it was only after an argument that they conceded that they worked for Northeast Kingdom Human Services.

They told her they’d been ordered not to let Bill ride the new bike Ms. Gilman had brought with her.

After another argument, Bill was allowed to take a brief ride around the parking lot. Then the two men followed mother and son along the bike path, insisting that Bill push his bike.

“They stalked us,” Ms. Gilman said. “This is really affecting Bill. He’s nervous, looking over his shoulder all the time. He has developed severe facial twitches.”

On Monday, Safe Choices agreed to bring Bill to the exercise sessions Ms. Gilman has regularly scheduled at Motion 365 in St. Johnsbury.

But, Ms. Gilman said, the Safe Choices staff doesn’t permit Bill to carry the inhaler he needs to control his asthma. And when he and two minders arrived in St. Johnsbury, they didn’t have his inhaler.

“She was totally unconcerned,” Ms. Gilman said of Tammy Crowe, who she identified as Bill’s case manager.

Later that day, Ms. Gilman said, Bill missed a six o’clock appointment with his attorney, Gertrude Miller, because there was no Safe Choices staff available to take him. Before she lost access to her son, Ms. Gilman said, she would be the one to take him. She added that the staff won’t let him talk to Ms. Miller on the telephone out of their earshot.

Mr. Bennett is living at Lowell House, a residence operated by Safe Choices at the end of a back road in Lowell.

Ms. Gilman said she was going back to Lamoille County Superior Court Tuesday to seek an emergency change of placement for her son.

She views the new rules barring private visits with her son as retaliation for exercising her right to speak out against Safe Choices and DAIL.

“I think they know I have a blog up, and it really pisses them off,” she said.

“I’m sorry she feels she’s being punished,” the new DAIL commissioner, Dr. Wehry, said Tuesday.

“As the person to whom her son is committed, I have a responsibility to him and the community. All I was trying to do was create some breathing space until we can sit down and consult.

“I have not met her or Mr. Bennett,” Dr. Wehry said. “I was only alerted a week or so ago that she had begun to post some blogs that indicated she did not think he had a problem. That raised a red flag to me about the nature of her supervision.”

If people are authorized to supervise men who are under Act 248, Dr. Wehry said, “there is an expectation that they acknowledge that the person has a problem.”

Dr. Wehry emphasized that her ruling was not permanent. “It was a ‘for now’ kind of decision,” she said, adding that representatives of her department and Northeast Kingdom Human Services plan to meet with Ms. Gilman.

That could happen as soon as May 10, Ms. Gilman said.

The idea of the meeting, Dr. Wehry said, is “let’s sit down and tell us what you mean by that.”

This is far from Ms. Gilman’s first skirmish with DAIL. Earlier this year the department tried to have Caledonia Probate Court remove her as her son’s guardian, and replace her with Dr. Wehry.

The department withdrew that motion on the day the matter was to be heard.

And Bill’s attorney, Ms. Miller, is awaiting a ruling in Lamoille Superior Court on a writ of habeus corpus that would free him from the commissioner’s control on the grounds that he was improperly placed under the jurisdiction of Act 248 in 2006.

Among Ms. Miller’s arguments is that, unless a child is involved, lewd and lascivious conduct is not on the list of dangerous crimes that can trigger Act 248.